A heated argument over the submission of a new report into evidence carried on into its second day Thursday at the Special Tribunal for Lebanon. Defense counsel Dorothee Le Fraper du Hellen, whose client Hassan Merhi is one of four accused of complicity in the assassination of former Prime Minister Rafik Hariri, had argued the previous day that the prosecution’s report should not be tendered into evidence, nor should its author, John Edward Philips, be allowed to testify on its contents.
Philips’ report had been commissioned after Le Fraper du Hellen’s cross-examination of prosecution analyst Andrew Donaldson, in which she cited a hitherto unmentioned “gray phone” as possible proof that another phone, dubbed the “purple phone,” could not have been used by her client. The prosecution, therefore, asked Philips to produce a report linking the purple and gray phones to make the case that they were operated by a single user.
Le Fraper du Hellen objected, saying that the report was adding new material facts to the proceedings, which is not allowed at this stage. Trial Chamber President Judge David Re responded by noting that the report was “merely a piece of evidence confirming the existence of this number.” Furthermore, as the defense itself had initially introduced the gray phone into proceedings, it could not argue that it was an entirely new number.
Le Fraper du Hellen, who said that the inclusion of the report would “seriously damage the integrity of the proceedings,” also objected on the grounds that the prosecution should technically not present a rebuttal case until after the conclusion of the defense case, which has not yet begun. Re nevertheless rejected her application to appeal the submission of the report.
Once Philips was allowed to take the witness stand, prosecution counsel Marc Desalliers began his examination. Philips set out his argument that the statistical evidence linking the purple and gray phones was so great as to make it almost certain they were used by the same person.
For the purposes of the report, Philips had analyzed a cumulative 1,832 calls for the gray and purple phones, as well as a third “green phone” that has also been linked to Merhi. Of these, 2 percent of the calls were from or to the green phone, while the remainder had been nearly equally divided among the purple and the gray phones.
A total of 266 pairings linking the phones to a particular time and place had been established between the purple and gray phones over a five-month period. Furthermore, there was only one overlapping call for all three phones during this whole period, which Philips suggested may have been a result of inaccuracies in the clocks used by the different centers collating the call data. Philips explained that over a short period of time two phones may appear to be used by one person, even if they have different owners. This may be a result of, for instance, these owners living and working in the same part of Beirut. However, he noted that “the greater the time period covered, the less likely this becomes.” In conclusion, Philips suggested that the evidence pointed to the “strong possibility that [all three phones] were being used by the same person.”
Le Fraper du Hellen undertook a short cross-examination of Philips, criticizing the extent of the report. She said that the cellphone data dumps that had been undertaken were incomplete, meaning that “you don’t know how many telephones could be compatible with your theory of a single user.”
Philips responded that this aspect of the case was not under his remit, as he was given evidence by the prosecution, which he subsequently analyzed. “All I know is what I’ve been asked to examine,” he said.
Following Philips’ evidence, the remainder of the hearing was spent dealing with submissions made by the defense team for Assad Sabra, which, once complete, will enable the conclusion of the prosecution’s case.